August is National Make-a-Will Month, but signing a Will is only the beginning of protecting yourself, your family and the legacy you have worked a lifetime to build.
Too many people believe that once they sign a Will, their estate planning is finished. It is not. A Will is an essential part of an estate plan, but for many individuals and families, a Living Trust can be just as important—and, in many cases, a Will and one or more Trusts should be used together as part of a coordinated estate plan.
The goal of estate planning is not simply to determine who receives your assets after you die. It is to create a plan that can protect your assets, provide for the people you love, address incapacity and long-term care concerns, minimize taxes and make the administration of your estate as orderly as possible.
Even if you lead a relatively simple life, dying without a Will can create unnecessary complications for your loved ones. Celebrities, public figures and everyday New Yorkers die without Wills every day. Your loved ones, however, do not have to be among them.
What Happens When There Is No Will?
Intestacy is the legal term for dying without a Will. When someone dies intestate, New York law, not the decedent, determines who is entitled to inherit property that passes through the estate.
In addition, the Surrogate’s Court must appoint an administrator to handle the estate. Certain relatives have priority to serve as administrator under New York law, but the person appointed may not be the individual the decedent would have chosen.
By contrast, a Will allows an individual to nominate the person they trust to administer the estate. That person, known as the executor, is responsible for carrying out the instructions contained in the Will and handling the estate’s affairs.
A Will also allows an individual to decide who should inherit property that passes under the Will, rather than leaving those decisions entirely to New York’s intestacy laws. Probate is the legal process through which the Surrogate’s Court determines that a Will is valid and gives the executor authority to carry out the wishes expressed in the Will. An estate without a Will generally proceeds through an administration proceeding instead.
Protecting Children and Other Loved Ones
A Will serves many important purposes beyond simply naming beneficiaries.
Parents of minor children can use a Will to nominate a guardian to care for their children if there is no surviving parent who is available to do so. Although the court ultimately has authority over the appointment, expressing the parents’ wishes in a properly executed Will provides important guidance and makes their wishes known.
A Will can also create Testamentary Trusts—Trusts established under a Will that takes effect upon the testator’s death. For example, a Will can establish a Trust for a minor child rather than leaving a substantial inheritance outright to a young beneficiary. It can also establish a Supplemental Needs Trust for a beneficiary with a disability or a Spendthrift Trust designed to provide additional protection and control over an inheritance.
These Trusts can be invaluable. A beneficiary who receives an inheritance outright may not have the financial sophistication, judgment or circumstances necessary to manage a significant sum of money. A properly drafted Trust can provide oversight while allowing assets to be used for the beneficiary’s benefit.
Supplemental needs planning can be particularly important when a beneficiary receives, or may later require, means-tested government benefits such as Medicaid and/or Social Security Income. When properly structured and when applicable legal requirements are satisfied, a Supplemental Needs Trust can permit assets to be used for the beneficiary’s benefit without jeopardizing eligibility for certain government benefits.
There are important distinctions between first-party and third-party Supplemental Needs Trusts, and the rules governing each are complex. For example, a first-party Supplemental Needs Trust funded with the beneficiary’s own assets generally contains a Medicaid payback provision, while a properly structured third-party Trust funded with someone else’s assets is treated differently, and avoids the Medicaid payback. This is an area where careful legal advice is essential.
A Will Is Important—but a Living Trust Is Likely Just as Important
A Will is fundamental. But for many families, estate planning should not stop with the Will.
A Living Trust is a legal arrangement in which assets are held and managed by a trustee for the benefit of one or more beneficiaries. Living Trusts can serve very different purposes, depending upon how they are drafted, funded and administered.
Revocable Living Trusts are created during a person’s lifetime and can provide significant flexibility. The person creating the Trust, often called the grantor or settlor, generally retains substantial control over the assets and may amend or revoke the Trust during his or her lifetime.
One of the principal advantages of a properly funded revocable Living Trust is that assets held in the trust generally can pass to beneficiaries without going through probate. This can provide greater privacy and may simplify and streamline the administration of an estate.
A Revocable Trust can also provide continuity of asset management if the person who created the Trust becomes incapacitated. In appropriate circumstances, a successor trustee can step in and manage trust assets according to the instructions established in the Trust agreement.
But Revocable Trusts are not designed to accomplish every estate-planning objective. In particular, a Revocable Trust generally does not protect the grantor’s assets from Medicaid eligibility rules or from the potential costs of long-term care during the grantor’s lifetime. New York Medicaid specifically states that, as a general rule, the assets of a Revocable Trust are considered the individual’s resources for Medicaid purposes. That is where Irrevocable Trusts and other forms of advanced Trust planning may become important.
Trust planning for long-term care must be undertaken carefully. Medicaid has specific rules governing transfers of assets, Trusts, eligibility and the treatment of income and resources. An Irrevocable Trust is not automatically a Medicaid-protection vehicle; its terms, funding, timing and the circumstances of the individual establishing it are critical.
This is precisely why trust planning should be considered before a health or financial crisis occurs, rather than as a last-minute response to the need for long-term care.
Trusts and Estate Taxes
Trusts can also play an important role in estate-tax planning. Depending upon the size of an estate and the individual’s circumstances, properly structured Trusts can help reduce or, in appropriate circumstances, eliminate estate-tax exposure. This is particularly relevant to New York residents because New York imposes its own estate tax in addition to the federal estate tax.
For 2026, New York’s basic estate-tax exclusion is $7.35 million, while the federal exclusion amount is $15 million.
A Will and a Trust Can Work Together
It is important to understand that having a Will does not mean that a person does not need a Trust—and having a Trust does not necessarily mean that a person does not need a Will.
In many well-designed estate plans, the Will and the Trust work together. A properly funded Living Trust generally controls the assets that have been transferred to the Trust. The Will can govern assets that remain in the individual’s name at death and can contain a “pour-over” provision directing assets into the Trust.
As evidenced above, a Will, although one of the most important documents a person can have, is only the beginning of a good estate plan. A well-coordinated comprehensive plan may involve a Will, one or more Trusts, beneficiary designations, retirement accounts, life insurance, powers of attorney, health-care proxies and other legal and financial documents. Most importantly, the plan should be coordinated. A Will that says one thing while beneficiary designations, joint ownership arrangements or Trust documents say something else can produce unintended results.
Ultimately, estate planning is about more than deciding who receives your property after you die. It is about protecting the people you love, preserving what you have worked hard to accumulate and making important decisions before a crisis occurs. Your Will is the beginning, not necessarily the end, of that process.
Whether you need a simple Will, a Revocable Living Trust, an Irrevocable Trust or a combination of planning tools depends upon your individual circumstances and objectives. The best time to create or review an estate plan is before you need it.
And the most important question is not simply: “Do I have a Will?” It should be: “Do I have a comprehensive plan?”
Ronald Fatoullah, Esq. Chairs the firm’s Elder Law Practice Group and is a Partner of the firm’s Trusts & Estates Practice Group.
This blog posting is for informational and educational purposes only. It is general in nature and not person or circumstance specific. This blog posting is not intended, nor should it be construed as rendering independent investment, legal or tax advice. It may but does not necessarily constitute attorney advertising.